Shambo v Government of Namibia (HC-MD-CIV-ACT-DEL-2021/00874) [2025] NAHCMD 8 (20 January 2025)

Shambo v Government of Namibia (HC-MD-CIV-ACT-DEL-2021/00874) [2025] NAHCMD 8 (20 January 2025)

REPUBLIC OF NAMIBIA


HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT


Case no: HC-MD-CIV-ACT-DEL-2021/00874


In the matter between:


DAVID SHAMBO PLAINTIFF

and

GOVERNMENT OF THE REPUBLIC OF NAMIBIA DEFENDANT

Neutral citation: Shambo v Government of Namibia (HC-MD-CIV-ACT-DEL- 2021/00874) [2025] NAHCMD 8 (20 January 2025)


Coram: Schimming-Chase J

Heard: 8, 9, 10 November 2022; 1 August 2024

Delivered: 20 January 2025


Flynote: Criminal procedure — Arrest — Wrongful arrest and detention — Requirements for lawful arrest — Reasonable suspicion — What constitutes — Plaintiff in violation of regulation 6(5) read with regulation 8(3) of Stage 2: State Of Emergency - Covid-19 Regulations: Namibian Constitution under government gazette number 7203 of 4 May 2020 — Arrest justified in terms of s 40(1)(a) and (b) of the Criminal Procedure Act 51 of 1977.

Criminal procedure — Use of force by police officer when effecting arrest — Provisions of s 49(1)(a) of Criminal Procedure Act 51 of 1977 — State bears onus to prove that use of force justified in circumstances where a suspect was resisting arrest — State failing to discharge onus.

Criminal procedure — Use of force by police officer when effecting arrest — test involves consideration of the proportionality between the seriousness of the relevant offence, the nature and degree of the force used and the threat posed by the person arrested to the safety and security of the police officers, other individuals and society as a whole.

Law of Delict — Damages — Quantum — Unlawful assault — Awards in other comparable cases helpful.


Law of Evidence — Mutually destructive versions — principles relating to evaluation of evidence restated.

Summary: On 1 June 2020, and during the Covid lock down period, the plaintiff was arrested for selling meat to a group of more than ten people, in violation of regulation 6(5) read with regulation 8(3) of Stage 2: State Of Emergency - Covid-19 Regulations: Namibian Constitution under government gazette number 7203 of 4 May 2020 (“the Covid Regulations”). The regulations provided that such action amounts to an offence. The plaintiff resisted arrest, and the police used what they alleged to be reasonable and justifiable force in terms of s 41(1)(a) of the Criminal Procedure Act 51 of 1977. The force used resulted in the plaintiff suffering a complex fracture of the right tibial bone in his right knee. He was taken to hospital from the police station some five hours after the arrest and then taken for X-rays. He was operated on some three weeks later and metal plates and screws were placed in his knee. The plaintiff still experiences pain and is no longer able to properly run his business as a meat vendor. The plaintiff sued for damages for pain, suffering and loss of amenities, as well as emotional shock. He claimed that the arrest and assault was unlawful. The State alleged that the arrest was lawful, that the plaintiff resisted arrest, and that reasonable force was used to subdue the plaintiff. Thus he was responsible for his own injuries.


Held that: where there are irreconcilable differences in the versions of the respective parties, the court will evaluate the credibility of the various factual witnesses; their reliability; and the probabilities.


Held that; on the evidence as evaluated, the State discharged its onus to prove that the plaintiff’s arrest was lawful in terms of ss 40 and 50 of the Criminal Procedure Act read with the Covid regulations. The State also discharged its onus to prove that the plaintiff resisted arrest, on his own version.


Held that: regarding the plaintiff’s injuries and whether reasonable force was used in giving effect to s 49(1) of the Criminal Procedure Act, the State draws the onus to prove that reasonable force was used in the circumstances.


Helf further that: the test to determine whether reasonable force was used involves the consideration of the proportionality between the seriousness of the relevant offence, the nature and degree of the force used and the threat posed by the person arrested to the safety and security of the police officers, other individuals and society as a whole.


Held that: applying the proportionality test, the police impermissibly exceeded their powers and the force used was excessive, given the ultimate injuries sustained, the minimum threat that he posed in the presence of three police officers, and that the offence for which he was arrested was not serious. The assault was therefore unlawful in the circumstances.


Held that: in determining damages, the court considers comparable awards, while taking into account the peculiar facts of the case at hand.


Held further that: the plaintiff proved damages for pain and suffering and psychological shock in the amount of N$100 000.




ORDER


  1. The defendant is ordered to pay to the plaintiff the amount of N$100 000 in damages for pain, suffering, loss of amenities and emotional shock.



  1. Interest shall run on the aforementioned amount at the rate of 20% a tempore morae, calculated from date of judgment to date of final payment.



  1. The defendant is ordered to pay the plaintiff’s costs of suit.



  1. The matter is considered finalised and removed from the roll.



JUDGMENT


SCHIMMING-CHASE J


Introduction


(a)Mr David Shambo, the plaintiff, is a major male meat vendor residing at Erf 385 Monte Christo Road, Havana, Katutura, Windhoek. Mr Shambo was arrested by members of the Namibian Police on 1 June 2020 at his place of residence, which is also his place of business. He sustained injury to his right knee during the arrest. Following his arrest, he was detained at the Wanaheda Police Station and then at the Katutura State Hospital until the morning of 2 June 2020. Surgery was later performed on his right knee on 19 June 2020 at the Katutura State Hospital, and he was discharged two weeks thereafter.


(b)Mr Shambo sues the Government of Namibia (represented by the Minister of Home Affairs, Immigration, Safety and Security) for a total amount of N$2 150 000 in damages, as a result of an unlawful assault perpetrated on him by members of the police force on 1 June 2020, during what is alleged to be an unlawful arrest.


(c)The core issue to be determined in this case is whether the arrest and detention of Mr Shambo was lawful, and whether the injuries sustained during the course of the arrest are attributable to an unlawful assault on Mr Shambo by members of the Namibian Police.


The pleadings


(d)The particulars of claim contain two claims. Claim A relates to an assault, and Claim B relates to an unlawful arrest and assault. The pleaded facts are that on 1 June 2020 at approximately 12h00 and at or near Erf 385, Monte Christo Road, Havana, while en route to the Wanaheda Police Station and later at the station itself, Mr Shambo was assaulted by a number of members of the Namibian Police.1 Mr Shambo alleged that he was repeatedly hit with closed fists, kicked with booted feet, and repeatedly hit with a hard object on his right knee. As a result, Mr Shambo suffered severe injuries on his body, including lacerations, bruises and a tibial plateau fracture of his right knee. He feared for his safety and felt humiliated, traumatised and degraded.


(e)As a result of the aforesaid assault and the injuries sustained as a consequence thereof, Mr Shambo suffered psychological trauma and discomfort; severe pain which persists; permanent loss of amenities; and lacerations and bruises on his body, and had to undergo surgery of an open reduction internal fixation with a plate and screws.


(f)The said assault took place in full view of members of the public and other persons detained or employed at the Wanaheda Police Station, thus aggravating the injury to the plaintiff’s dignity.2


(g)As a result of the said injuries, Mr Shambo sustained damages in the amount of N$2 million for physical and emotional pain and suffering, discomfort, permanent loss of amenities, trauma, psychological damage, and injury to his dignity and reputation.


(h)Concerning Claim B, it is pleaded that on 1 June 2020 at the same premises referred to above, Mr Shambo was unlawfully arrested by members of the Namibian Police without a warrant, and without reasonable suspicion or cause.


(i)Thereafter, Mr Shambo was detained at the Wanaheda Police Station, Wanaheda, Katutura, until he was transported to the Katutura State Hospital between 16h00 and 17h00 on 1 June 2020 where he was admitted as a result of the injuries sustained during the assault.


(j)As a result of the unlawful conduct of the members of the Namibian Police, Mr Shambo alleges that his constitutional right to dignity (as contemplated in article 8 of the Namibian Constitution) and his right not to be subjected to arbitrary arrest (as contemplated in article 11(1) of the Namibian Constitution) were violated.


(k)Mr Shambo accordingly suffered damages in the amount of N$150 000 made up as follows:


  1. physical and emotional pain and suffering as a result of deprivation of liberty and freedom of movement, in the amount of N$100 000;

  2. injury to dignity and reputation in the amount of N$50 000.



(l)The defendant denies the assault, and maintains that the arrest of Mr Shambo was lawful. The following facts are pleaded by the defendant.


(m)On Monday, 1 June 2020 and at about 13h45, Inspector Kundu, and Constables Victor and Nangolo (members of the Namibian police), while on duty, came across Mr Shambo at his residence where he was grilling and selling meat.3 They observed more than ten people gathered at his residence. This meant that Mr Shambo was in violation of regulation 6(5) read with regulation 8(3) of Stage 2: State Of Emergency - Covid-19 Regulations: Namibian Constitution under government gazette number 7203 of 4 May 2020 (“the Covid Regulations”).


(n)In an attempt to disperse the gathering at the premises, Mr Shambo was instructed (in terms of reg 6(4) of the Covid Regulations) to stop the grilling and selling of kapana, as it instigated or facilitated the gathering of more than ten people.


(o)According to the defendant, Mr Shambo ‘blatantly refused’ to remove his kapana (including braai stands) and claimed that ‘kapana is his source of survival’. Mr Shambo further refused to get into the police vehicle and to accompany the police officers to the police station after he was so instructed in contravention of reg 6(6) of the Covid Regulations. Mr Shambo informed inspector Kundu that ‘this is the last time you arrest me and today I am not going to be arrested, and you will regret the action I will take against you’.


(p)It is pleaded that Mr Shambo was aggressive, that he threatened inspector Kundu and that he grabbed Constable Musewa by the neck. In the result, the police officers used minimum force to put him on the ground and handcuffed him in order to execute the arrest. Thereafter Mr Shambo was loaded on to the police vehicle. The police officers only became aware of the plaintiff’s broken ‘leg’ upon his arrival at the police station.


(q)It is pleaded further that the police officers used reasonable force in executing the arrest, and that they were justified under the circumstances in terms of reg 6(4) of the Regulations and under s 49(1)(a) of the Criminal Procedure Act 51 of 1977 (“CPA”), which authorises a police officer to arrest without a warrant any person who commits or attempts to commit any offence in his/her presence. It is further the defendant’s case that Mr Shambo’s detention came as a result of his lawful arrest and same was in accordance with ss 40 and 50(1) of the CPA. Criminal cases were opened against Mr Shambo (under numbers CR 21/06/2020 and CR 23/06/2020) in respect of the said offences.


(r)It is pleaded that any physical pain, emotional shock or trauma suffered by Mr Shambo was self-inflicted.


(s)Mr Shambo’s arrest without a warrant on the aforementioned dates is not in dispute. Neither is the injury to his knee, or his hospitalisation, or the surgery that he underwent on 19 June 2020. It is also not disputed that he remained at hospital for two weeks after his surgery. It is also common cause that on the morning of 2 June 2020 and whilst in hospital, Mr Shambo was served with a notice to appear in the two criminal cases opened in respect of the said offences for which he was arrested, and that he was also released upon service of the notice.

The evidence


The plaintiff’s evidence

(t)Mr Shambo testified and called 6 witnesses, namely Festus Haishali (Mr Shambo’s cousin), Elizabeth Shambo (Mr Shambo’s wife), Hambia Martin Shikopi (one of the meat vendors who had also been arrested and was in the police vehicle at the time of the incident), Paulus Shambo (Mr Shambo’s son), Iithelenga Sem (another detained meat vendor similarly present in the police vehicle at the time) and Nestor Shambo (Mr Shambo’s other son).


(u)I will not deal with the evidence of each witness called, and will instead deal with the relevant evidence on which a determination is required.


(v)Mr Shambo testified that he was assaulted by members of the Namibian Police. They hit him with closed fists, kicked him with booted feet, repeatedly hit him on his right knee, and stepped on his right knee. In this regard, Mr Shambo amended his statement under oath by removing the reference to being repeatedly hit on his right knee with a hard object (as set out in the particulars of claim), to testifying that they stepped on his right knee.


(w) Mr Shambo testified that on that day, police officers arrived at his place of residence. Three of them approached his residence and one remained in the car (the driver). At the time, his children were sitting outside the house under the roof. One of the officers, asked whose meat was being sold, and he answered from inside the house that it was his meat. Then one of the police officers held Mr Shambo’s arm behind his back, and the other officer said ‘we will be going’. One Inspector Kundu told him that: ‘Come, let us go, we arrested you on a previous occasion for selling meat and you keep on selling meat, come let us go, we are taking you to Wanaheda, and you will not be getting a fine’. Mr Shambo responded that he could not stop selling meat as this was his only source of income. Inspector Kundu insisted that Mr Shambo must accompany the police.


(x)Mr Shambo refused to move. Then, and on instructions of Inspector Kundu, two police officers grabbed Mr Shambo’s arms and twisted them. One of them put handcuffs on one wrist, and attempted to put the handcuffs on the other wrist. At the time Mr Shambo was holding on to a pole which is part of the structure of his house. The two officers then started hitting him on his abdomen with closed fists and slapping him. He felt excruciating pain and fell to the floor. He realised that one of the police officers had his knee on his back. They grabbed Mr Shambo and threw him on the ground. One tried to strangle him. When the knee was placed on his back, they were able to place the handcuff on the other wrist. After being placed in handcuffs, he was beaten and kicked and slapped.


(y)Inspector Kundu then instructed one of the officers to put him in the back of the police vehicle. However Mr Shambo could not get up as a result of excruciating pain in his right knee. Mr Shambo was then grabbed by the officer. In that process his belt fell off and his cousin, Festus Haishali, came to his aid and pulled up his trousers. He was then transported to Wanaheda Police station in a police vehicle.


(z)After his arrival at the Wanaheda Police station, and after a long wait4 in pain, he was taken from the station in a wheelbarrow to a vehicle, and transported to Katutura Hospital where he was admitted. He was given strong pain killers and sent for an X-ray. He slept at the hospital under police guard. The next morning, ie 2 June 2020, at around 10h00, a female police officer came to the hospital and served him with two notices to appear in court for contraventions of the Covid Regulations, because he was selling kapana to more than ten people who had gathered, and because he refused to stop selling kapana when instructed to do so.


(aa)Mr Shambo remained in hospital and underwent an operation on 19 June 2020. It is not in dispute from the documents discovered and received as exhibits, that Mr Shambo had a complex fracture of his tibial plateau and the fibular head of his right knee, for which plates and screws were inserted during surgery on the same knee. Mr Shambo remained in hospital from 1 to 19 June 2020 – when he underwent surgery – and for a further two weeks thereafter.


(bb)Mr Shambo testified that approximately a year and a half after the injury, he cannot stand for longer than five minutes at a time. He has not been able to sell meat or kapana after the incident, and is now without the ability to earn an income. He moved to the northern part of the country and sold his car (a Toyota Hilux) in order to provide for the family. He also has an ugly scar on his knee.


(cc)Mr Shambo refuses to pay the fine contained in the notices handed to him because he is not guilty.


(dd)Mr Shambo testified that he was advised that an arrest is only employed when police want to procure a person before court. As such, his arrest was unlawful and wrongful. According to Mr Shambo there were never more than ten people at his place and there were mostly family members there at the time.


(ee)Mr Shambo also testified that the meat that he was selling at that point in time, was raw meat, meaning that if a customer came to his residence/business to buy meat, it was for take away only. There was thus no reason for more than ten people to be there.


(ff)The following relevant facts were elicited under cross-examination. Firstly, and regarding the testimony that Mr Shambo was hit with closed fists and kicked with booted feet on the right side of his body and all over his head, and that he was swollen on both sides of his face, I note from the Medical Examination Report (Form J88), that no mention was made about any bruises or swelling to Mr Shambo’s body or face. What was noted was the dirt around his jeans, and that a ‘grossly deformed right knee-appears subluxed. Crepitus indicative of fracture around knee. X rays: Complex biplateau fracture of the right tibial bone’. Mr Shambo was cross-examined on this form. The defendant did not object to this document that was discovered, and it was received as an exhibit.


(gg)In addition, although Mr Shambo emphasised in his testimony before court that he was only selling raw meat, an earlier statement under oath made by Mr Shambo where he laid criminal charges of assault against the police5 dated 7 August 2020 was produced, and he was cross examined on the contents of this earlier statement. It reveals that Mr Shambo stated that ‘I sell meat at single quarters. I also have a meat business at home at Erf 385 Monte Christo Road. During the second stage of lockdown, meat sellers were allowed to operate by take away. As such I was selling my meat and take away on both fresh meat and kapana’. (emphasis added)


(hh)Mr Festus Haishali, Mr Shambo’s cousin, testified that three police officers arrived at Mr Shambo’s residence. He recalled that the older officer told Mr Shambo that he had previously warned him about selling meat and that he should stop but he had not. Since Mr Shambo had enough money to pay, he would arrest him and take him to Wanaheda Police Station to pay a fine.


(ii)According to Mr Haishali, Mr Shambo informed the police that he had no problem going with them to the Police Station and that there was no need to handcuff him because he did not do anything wrong. It is Mr. Haishali’s evidence that one of the police officers then grabbed Mr Shambo from behind his neck and kicked his knee back resulting in him falling to the ground, and that the other police officer held Mr Shambo’s neck with force while his other hand held his nose so as to suffocate him.


(jj)The following relevant information was elicited in cross-examination. Firstly, it was not Mr Shambo’s testimony that he agreed to go to the police station. His evidence was clear that he refused to go with the police. Mr Haishali also contradicted Mr Shambo’s evidence on how the assault took place, and how he came to fracture his knee.


(kk)Although a number of witnesses testified, including Mr Shambo’s wife, and two other male kapana vendors that were inside the police van at the time, having themselves been arrested previously on the same day for the same offence as Mr Shambo, their evidence is not relevant to the determination of the matter. Neither is the evidence of Mr Shambo’s son, Mr Paulus Shambo (‘Mr Paulus’), who also witnessed the events as they unfolded. However one aspect of his testimony is relevant to the determination of whether Mr Shambo was in violation of the Covid Regulations


(ll)Mr Paulus testified in chief that his father was only selling raw meat. Mr Paulus amended his witness statement to state that when the police arrived at the house, he observed that they noticed that there was braai stand, and a basin containing raw meat that was on top of the table. His witness statement previously explicitly stated that the police noticed the braai stand with fried meat.


(mm)Mr Nestor Shambo (“Mr Nestor”), the plaintiff’s other son, also amended his witness statement during his evidence-in-chief. His statement initially read that the police came to their yard and saw meat on a braai stand. They asked whose meat it was, and Mr Shambo immediately responded that it was his. In the amended version, and his testimony in chief, Mr Nestor testified that there was no meat on the braai stand at the time, but he could not properly explain in cross-examination, why the police would ask whose meat it was, if there was no meat on the braai stand.


The defendant’s witnesses

(nn)Inspector Robert Kundu, a member of the Namibian police force, testified that on Monday, 1 June 2020 at about 13h45, while he was on duty with his colleagues in Havana, they came across Mr Shambo’s house where they saw more than ten people gathered, eating kapana. He and his colleagues approached the house, and he enquired who the person was that was selling kapana. Mr Shambo responded that he was the one selling it. He ordered Mr Shambo to stop and reminded him that he had been previously arrested for the same offense for which he was fined N$2000.


(oo)According to Inspector Kundu, Mr Shambo was grilling and selling meat and in the process caused more than ten people to gather in contravention of reg 6(5) read with reg 8(3) of the Covid Regulations. He testified further that in an attempt to disperse the gathering of the group he instructed Mr Shambo in terms of reg 6(4), to stop grilling and selling kapana as it caused the gathering of more than ten people. Mr Shambo blatantly refused to remove his kapana, including the braai stands and claimed that kapana is his source of survival.


Mr Kundu informed Mr Shambo that he would be arrested for contravention of the regulations. They told Mr Shambo to come with them to the station, but he blatantly refused to comply with the order, and threatened Officer Kundu. Constable Musewa then warned Mr Shambo not make any threats towards an officer of the law. Two police officers tried to handcuff Mr Shambo, however, they managed to handcuff him only after use of reasonable force. Mr Shambo was then loaded in the back of the police van and they drove to the station.


(pp)Inspector Kundu testified that cases of contravening Covid regulation 6(5) and failure to adhere to the instruction given by a police officer were registered against Mr Shambo, and that he was charged on both cases. It was his testimony further, that had Mr Shambo cooperated just like the other arrestees, the use of minimum force would have not been necessary and as such, he was responsible for what happened to his leg.


(qq)With regard to the arrest, Inspector Kundu testified that the arrest of Mr Shambo was lawful and justifiable under the circumstances and it was properly executed in terms of s 40(1) of CPA, which authorises a peace officer to arrest without a warrant any person who commits or attempts to commit any offence. He testified further that Mr Shambo’s subsequent detention was carried out in terms of s 50 of the CPA.


(rr)Constable Lisias Musewa testified that on 1 June 2020, he and his colleagues found Mr Shambo grilling meat at his residence. He testified that Mr Shambo’s customers were many, and definitely exceeded ten, although he conceded that neither he nor any of his colleagues performed a specific count of customers, nor did they take any names. At the time there were other vendors that had been arrested for selling meat contrary to the Covid Regulations, who were sitting in the police vehicle to be taken to Wanaheda Police Station.


(ss)It was his testimony that Inspector Kundu requested Mr Shambo to pack up his meat and go with them to the station. He refused to follow the instructions and made it clear that he was not going anywhere with them. Mr Shambo said to them that he (Mr Shambo), would ensure that Inspector Kundu regretted his actions. This was perceived as a threat, and he advised Mr Shambo that threatening a police officer constituted a crime and he could be charged with obstructing and assault by threatening. Mr Shambo refused to accompany them and minimum force was used to effect the arrest.


Applicable legal principles and analysis

(tt)I deal firstly with the relevant provisions of the Covid Regulations.


‘Gatherings

6. (1) For the purpose of this regulation, “gathering” means a group of more than10 persons who meet for a common purpose.


(2) During the specified period, all gatherings are prohibited, except where –


(a) all persons at the gathering are members of the same household gathered at their place of residence.


(b) persons are gathered at their workplace;


(c) the gathering is by a government institution at national, regional or local level or the Cabinet or the Parliament for purposes of its normal operations;


(d) the gathering is for purposes of court or tribunal proceedings; or


(e) a group of persons independently or coincidentally find themselves at a specific place.


(3) Persons who gather in the circumstances referred to in subregulation (2) must at all times adhere to the measures to combat, prevent and suppress the spread of COVID-19 as specified in and under these regulations.


(4) An authorised officer may instruct a gathering or a group of more than ten persons, other than a gathering referred to in subregulation (2), to disperse and may use all reasonable measures to cause a gathering or group to disperse. (emphasis added)


(5) A person who facilitates, instigates or organises a gathering commits an offence and is on conviction liable to a fine not exceeding N$2000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. (emphasis added)


(6) A person who fails or refuses to obey an instruction issued under subregulation (4) commits an offence and is on conviction liable to the penalties provided for in subregulation (5).’


(uu)Section 40(1)(a) of the CPA provides that a peace officer may without warrant arrest any person who commits or attempts to commit any offence in his presence.


(vv)Regulation 8 restricted, at the time, certain business activities. Regulation 8(3) provides as follows:


‘Accommodation establishments and other businesses including kapana selling businesses which in the course of business or trade or commerce sell food items must operate on a takeaway basis.’


(ww)Section 49(1) of the CPA provides as follows:


‘Use of force in effecting arrest

49. (1) If any person authorized under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person -


(a) resists the attempt and cannot be arrested without the use of force; or

(b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees,

the person so authorized may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.’ (emphasis added)


(xx)Section 50(1) of the CPA deals with the procedure after arrest and provides that a person arrested with or without warrant shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant. If not released by reason that no charge is to be brought against him, he shall be detained for a period not exceeding 48 hours, unless he is brought before a lower court and his further detention, for the purposes of his trial, is ordered by the court upon a charge of any offence or, if such person was not arrested in respect of an offence, for the purpose of adjudication upon the cause for his arrest.6


(yy)Section 50(3) provides that ‘Nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on written notice to appear in court’.


(zz)The first question to be determined is whether Mr Shambo was lawfully arrested. It is apparent from reg 6(4) and (5) of the Covid Regulations that a person who at the time facilitated, instigated or organised a gathering, committed an offence and could on conviction become liable to a fine not exceeding N$2000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. Also, the regulation provides that an authorised officer may instruct a gathering or a group of more than ten persons, other than a gathering referred to in subregulation (2), to disperse and may use all reasonable measures to cause a gathering or group to disperse.


(aaa)Regulation 6 read with reg 8(3) makes it an offence for more than ten people to gather at one place for purposes of selling kapana, which is restricted to a take away basis. The defendant’s case is that Mr Shambo was arrested for contravention of regulation 6(5), for facilitating, instigating or organising a gathering of more than ten people, and reg 6(6) for his refusal to obey an instruction issued to disperse the gathering.


(bbb)The testimony of the witnesses on both sides is not altogether satisfactory, and is also irreconcilable as to whether there was a contravention of the Covid Regulations. It is trite that the State draws the onus to prove a lawful arrest.


(ccc)Where the parties’ versions are irreconcilable on very material issues, the approach to be followed in resolving factual disputes are as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness box; (ii) his bias, latent and blatant; (iii) internal contradictions in his evidence; (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra-curial statements or actions; (v) the probability or improbability of particular aspects of his version; and (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. The court therefore has to make credibility findings and to determine where the probabilities lie.7


(ddd)Mr Shambo testified that he was selling raw meat on a take away basis, which was permitted under the Covid regulations. He disputed that there was grilled meat, or that he was grilling meat. In his statement under oath where he laid charges against the police officers, he specifically referred to his occupation as selling raw and grilled meat.


(eee)Both his sons amended their witness statements during their evidence in chief to suit their father’s testimony. Mr Paulus initially stated that there was grilled meat, and then changed it. Mr Nestor said there was no meat. None of the witnesses could dispute Inspector Kundu’s evidence to the effect that he asked whose meat it was (this was confirmed by Mr Nestor), and that he asked the crowd to disperse. Added to that, two other meat vendors had also been arrested and were in the back of the police vehicle. These gentlemen had cooperated with the police.


(fff)Also, and from Mr Shambo’s own testimony, he refused to be detained, as it were, and he refused to stop selling grilled meat in order for the crowd to disperse after being asked to do so by a member of the police.


(ggg)Officers Kundu and Musewa did not count the number of persons gathered, nor did they take any names. That is indeed unsatisfactory, especially from police officers. However they were both clear that it was more than ten people, and that meat was grilling. There would in all probability be no other reason for Inspector Kundu and his colleagues to stop their vehicle at Mr Shambo’s house and enquire about the gathering, if a gathering in contravention of the Covid Regulations was not taking place.

(hhh)Based on the evidence tendered, I hold the view that the probabilities show that Mr Shambo acted in conflict with the Covid Regulations at the time, and that the defendant made out a case that there was a reasonable suspicion that an offence was being committed in violation of the Covid regulations. He was effectively detained at the police station for a maximum of five hours and went to hospital thereafter. He was released with the warning statements on the morning of 2 June 2020. Whether he was served with a notice to appear instead of appearing at court after the arrest, does not negate the fact that in the circumstances of this case, Inspector Kundu was authorised to arrest Mr Shambo in line with the Covid Regulations, read with ss 49 and 50 of the CPA.


(iii)The next question to be determined, is whether the arresting officers used reasonable force within the meaning of s 49 of the CPA. The defendant draws the onus to prove a use of reasonable force, and that Mr Shambo could not be arrested without the use of reasonable force in the circumstances.


(jjj)Counsel for the defendant argued that on the totality of the evidence before court, the reasonable and probable conclusion to be made is that Mr Shambo’s injury came about as a result of Mr Shambo resisting arrest, and that his actions rendered the use of minimum force necessary.


(kkk)The Supreme Court of Appeal of South Africa in Govender v Minister of Safety and Security8 had occasion to interpret and apply the provisions of section 49 of the Criminal Procedure Act9 in circumstances where a police officer shot a young gentleman in order to apprehend him. Although the section was interpreted on facts involving the use of a firearm by the police, which is not the case here, I hold the respectful view that the principles relating to the test to be applied relating to the use of reasonable force are apposite and of assistance.


(lll)In Govender,10 s 49 was interpreted by considering the responsibility of the State to protect the rights of its citizens, and the requirement of the State to preserve the effectiveness of the criminal justice system. Reasonable force was interpreted to include a consideration of proportionality between the nature and degree of the force used, and the threat posed by the person being arrested or apprehended, to the safety and security of the police officers, other individuals and society as a whole.11


(mmm)I bear in mind, as argued by counsel for Mr Shambo that he was not brought to court, but released with a warning notice in terms of s 50 of the CPA. It is well known that the Covid Regulations were made to protect persons from contracting the Corona Virus, during a State of Emergency. I agree that in the scheme of things, the offence was not serious, but there was at the time a need for social distancing due to the risk of infection and possible death posed by the Corona Virus. I also bear in mind that two officers effectively ‘apprehended’ Mr Shambo.


(nnn)The injury sustained by Mr Shambo to his knee only, was clearly serious. Mr Shambo ended up with a complex biplateau fracture of the right tibial bone in his knee. The medical practitioner observed what was described as a ‘grossly deformed knee’. The injury was so serious that he underwent surgery on 19 June 2020 and metal pins were inserted in his knee.


(ooo)Mr Shambo testified that he remained in the hospital until his eventual discharge some two weeks later, but would attend to the hospital for follow ups and dressings on numerous occasions. He testified that he continues to have pain, and it was apparent when he testified that he had to request to sit whilst testifying because of the pain. He also testified that he is unable to stand for longer than five minutes at a time. He feels humiliated, traumatized and degraded. The assault took place in full view of other people, notably his wife, children and cousin, and that aggravated the injury to his dignity.


(ppp)By no stretch of the imagination can the use of reasonable force to overcome the resistance of Mr Shambo result in such a serious complex fracture of the nature suffered by Mr Shambo. He resisted arrest by holding on to a pole and it is very apparent that two police officers, in fact, three in total, did not make an effort to subdue and arrest Mr Shambo in a less violent manner. The actions of the police officers were far from reasonable, and they impermissibly exceeded the boundaries of what is reasonable in the circumstances, given the minimal threat posed by Mr Shambo to either the police or the members of the public.12


(qqq)Mr Shambo’s physical integrity was brutally violated. It resulted in an unlawful assault perpetrated on Mr Shambo, and he is entitled to damages for the unlawful assault.


Damages

(rrr)The applicable law to this aspect of the case has by now become trite. A successful plaintiff is entitled to be compensated for the loss suffered but is not entitled to profit from the loss.13 In determining the quantum to be awarded, comparable cases are of great assistance, but the court must always take into account the circumstances of each individual case. When making awards for general damages, courts should also guard against duplication of awards and awards that overlap, leading to the successful plaintiff being overcompensated.


(sss)In Stoffberg v Elliot14 , Watermeyer J, as he then was, described an assault as follows:


‘In the eyes of the law, every person has certain absolute rights which the law protects. They are not dependent upon a statute or upon a contract, but they are rights to be respected, and one of those rights is the right of absolute security of the person. Nobody can interfere in any way with the person of another, except in certain circumstances which I will further explain to you. Any bodily interference with or restraint of a man’s person which is not justified in law, or excused by law, or consented to, is a wrong, and for that wrong the person whose body has been interfered with has a right to claim such damages as he can prove he has suffered owing to that interference.’


(ttt)In making the assessment of quantum, I reiterate the applicable principle in Esso Standard SA (Pty) Ltd v Katz15 where the South African Appellate Division referred to the case of Hersman v Shapiro & Co,16 with approval. There, Stratford J stated the following:


‘Monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the Court is very little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff, which he has not produced; in those circumstances the Court is justified in giving, and does give, absolution from the instance. But where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it.’


(uuu)In Amaambo v The Government of the Republic of Namibia,17 Masuku J awarded compensation in the amount of N$85 000 for pain and suffering, and N$50 000 for emotional and psychological shock and trauma and inconvenience. In this matter the plaintiff was kicked twice in the mouth by a police officer after a police chase.


(vvv)In Haishonga v The Government of the Republic of Namibia,18 the plaintiff was negligently shot in the chest by a police officer on duty. The bullet could not be removed and the plaintiff spent some time in hospital. The court awarded judgment in favour of the plaintiff in the following terms: for pain and suffering, damages in the amount of N$100 000; and for emotional and psychological pain, damages in the amount of N$50 000.


(www)The following comparable South African cases submitted by counsel for Mr Shambo is also helpful. In April v Minister of Safety and Security,19 a 35-year-old male worker sustained two gunshot wounds, one to the lower thigh and the other to the lower back. The projectile had fragmented in the lower thigh requiring surgical removal but resulted in no residual disability. The entrance wound in the lower back through the buttock muscle caused a compound fracture of the ilium. The fracture was treated surgically and the plaintiff discharged on crutches. The fracture took six months to heal. The plaintiff’s injuries were categorised as moderately severe with serious temporary disability, but without permanent disability or functional sequelae. There was temporary impairment of ability to participate in road running and football. The development of post-traumatic stress syndrome and co-morbid major depressive disorder and anxiety was successfully treated with medication and psychotherapy. The court awarded general damages in an amount equivalent to N$209 000 in today’s terms.


(xxx)In Matsana v Minister of Police,20 the court awarded an amount of N$117 000 in today’s terms as general damages to an adult male employed as a community patroller who sustained a gunshot wound from a high-powered rifle to the right foot. He underwent two operations to his foot. The wound left some unsightly scars on his right foot. There was also scarring of the right thigh which became the donor area for a skin graft operation. The plaintiff continued to suffer from the effects of bullet shrapnel which remained in his foot. He suffered from impaired function of the right foot and could no longer perform the same physical activities as he used to prior to the shooting.


(yyy)As stated in para [67] above, during trial Mr Shambo testified about the ongoing physical and emotional impact of his injury. He detailed his extended hospital stay, the need for follow-up care, his continued pain and his limited ability to stand for more than five minutes at a time. Furthermore, he expressed feelings of humiliation, trauma and degradation, particularly as the assault occurred publicly in the presence of his family, which aggravated the affront to his dignity.


(zzz)Although Mr Shambo did not produce any evidence of his pecuniary loss, I am required to make an estimate of the quantum of damages, based on the relevant and admissible evidence tendered. I have considered the comparable cases, as well as Mr Shambo’s own evidence. I believe that an amount of N$100 000 would be a compensation award in line with the particular facts and the legal principles.


Conclusion

(aaaa)In light of the foregoing, Mr Shambo is entitled to general damages for pain, suffering and loss of amenities, and emotional shock in a total amount of N$ 100 000.


(bbbb)As regards costs, Mr Shambo was substantially successful, and therefore the defendant must pay his costs of suit. In the result, the following order is made:


  1. The defendant is ordered to pay to the plaintiff the amount of N$100 000 in damages for pain, suffering, loss of amenities and emotional shock.



  1. Interest shall run on the aforementioned amount at the rate of 20% a tempore morae, calculated from date of judgment to date of final payment.



  1. The defendant is ordered to pay the plaintiff’s costs of suit.



  1. The matter is considered finalised and removed from the roll.





____________________

EM SCHIMMING-CHASE

Judge



APPEARANCES


PLAINTIFF: N Tjombe

of Tjombe-Elago Inc.


DEFENDANT: R H Ketjijere

Office of the Government Attorney

1 The following police officers were present at the arrest of the plaintiff: Inspector Kundu, Constable Victor, Constable Nangolo, and Constable Lisias Musewa.

2 That members of the public witnessed the events is not in dispute in terms of the pre-trial order.

3 Known in Namibia as ‘Kapana’.

4 The totality of the evidence suggests that the wait was four to five hours.

5 A copy of the warning statement indicating that Mr Shambo understood his rights and chose to make a statement was received as an exhibit.

6 It is unnecessary to set out the fairly lengthy proviso which details the circumstances in which the 48 hour period may be extended.

7 Stellenbosch Farmers’ Winery Group Ltd v Martell Et Cie and Others 2003 (1) SA 11 at 14H-15E; Road Fund Administration v Skorpion Mining Company (Pty) Ltd 2018 (3) NR 829 (SC) para 49.

8 Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA).

9 Which, prior to its amendment in 2003, was substantially similar if not identical to the Namibian Criminal Procedure Act.Section 49 of the South African CPA was amended following the judgment in Ex Parte Minister of Safety and Security: In re S v Walters in which the Constitutional Court declared the prior s 49(2) to be unconstitutional, which had permitted the use of lethal force to prevent the flight of a suspect under certain circumstances. The amendment introduced, inter alia, a proportionality requirement, in that force must not only be “reasonably necessary” but also proportional in the circumstances.

10 Govender supra.

11 Ibid paras 14-19 and the authorities collected there.

12 See Sheefeni v Council of the Municipality of Windhoek 2015 (4) NR 1170 (HC) para 17.

13 Per Parker AJ in Lopez v Minister of Health and Social Services 2019 (4) NR 972 (HC) para 40.

14 Stoffberg v Elliot 1923 CPD 148 at 148.

15 Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A).

16 Hersman v Shapiro & Co 1926 TPD 367 at 379-380.

17Amaambo v The Government of the Republic of Namibia (HC-MD-CIV-ACT-DEL-2019/03738) [2023] NAHCMD 44 (09 February 2023).

18Haishonga v The Government of the Republic of Namibia (HC-MD-CIV-ACT-DEL-2017/00359) [2019] NAHCMD 219 (03 June 2019).

19 April v Minister of Safety and Security 2008 (5J2) QOD 197 (E).

20 Matsana v Minister of Police 2016 (7G3) QOD 26 (GNP).

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